Clarke v. Securities Indus. Ass’n, 479 U.S. 388 (1987)

JUSTICE WHITE delivered the opinion of the Court.

In these cases, we review an application of the so-called "zone of interest" standing test that was first articulated in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970). Concluding that respondent is a proper litigant, we also review, and reverse, a judgment that the Comptroller of the Currency exceeded his authority in approving the applications of two national banks for the establishment or purchase of discount brokerage subsidiaries.

I

In 1982, two national banks, Union Planters National Bank of Memphis (Union Planters) and petitioner Security Pacific National Bank of Los Angeles (Security Pacific), applied to the Comptroller of the Currency for permission to open offices that would offer discount brokerage services to the public.{1} Union Planters proposed to acquire an existing discount brokerage operation, and Security Pacific sought to establish an affiliate named Discount Brokerage. Both banks proposed to offer discount brokerage services not only at their branch offices but also at other locations inside and outside of their home States.

In passing on Security Pacific’s application, the Comptroller was faced with the question whether the operation of Discount Brokerage would violate the National Bank Act’s branching provisions. Those limitations, enacted as §§ 7 and 8 of the McFadden Act, 44 Stat. 1228, as amended, are codified at 12 U.S.C. § 36 and 12 U.S.C. § 81. Section 81 limits "the general business" of a national bank to its headquarters and any "branches" permitted by § 36. Section 36(c) provides that a national bank is permitted to branch only in its home State, and only to the extent that a bank of the same State is permitted to branch under state law. The term "branch" is defined at 12 U.S.C. § 36(f)

to include any branch bank, branch office, branch agency, additional office, or any branch place of business . . . at which deposits are received, or checks paid, or money lent.

The Comptroller concluded that

the non-chartered offices at which Discount Brokerage will offer its services will not constitute branches under the McFadden Act because none of the statutory branching functions will be performed there.

App. D to Pet. for Cert. in No. 85-971, p. 39a. He explained that, although Discount Brokerage would serve as an intermediary for margin lending, loan approval would take place at chartered Security Pacific offices, so that Discount Brokerage offices would not be lending money within the meaning of § 36(f). Likewise, although Discount Brokerage would maintain, and pay interest on, customer balances created as an incident of its brokerage business, the Comptroller concluded that these accounts differ sufficiently in nature from ordinary bank accounts that Discount Brokerage would not be engaged in receiving deposits.{2} He further observed that treating offices conducting brokerage activities as branches under § 36(f) would be inconsistent with the "longstanding and widespread" practice of banks’ operating nonbranch offices dealing in United States Government or municipal securities. Id. at 44a. Accordingly, the Comptroller approved Security Pacific’s application.{3}

Respondent, a trade association representing securities brokers, underwriters, and investment bankers, brought this action in the United States District Court for the District of Columbia. Among other things, respondent contended that bank discount brokerage offices are branches within the meaning of § 36(f), and thus are subject to the geographical restrictions imposed by § 36(c).{4} The Comptroller disputed this position on the merits, and also argued that respondent lacks standing because it is not within the zone of interests protected by the McFadden Act.{5} The Comptroller contended that Congress passed the McFadden Act not to protect securities dealers, but to establish competitive equality between state and national banks.

The District Court, relying on Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970), held that respondent has standing and rejected the Comptroller’s submission that national banks may offer discount brokerage services at nonbranch locations. A divided panel of the Court of Appeals affirmed in a brief per curiam opinion,{6} 244 U.S.App.D.C. 419, 758 F.2d 739 (1985), and rehearing en banc was denied, with three judges dissenting. 247 U.S.App.D.C. 42, 765 F.2d 1196 (1985).

The Comptroller sought review by petition for certiorari, as did Security Pacific. We granted both petitions, and consolidated the cases. 475 U.S. 1044 (1986). We now affirm the judgment that respondent has standing, but reverse on the merits.

II

In Association of Data Processing Service Organizations, Inc. v. Camp, supra, the association challenged a ruling by the Comptroller allowing national banks, as part of their incidental powers under 12 U.S.C. § 24 Seventh, to make data processing services available to other banks and to bank customers. There was no serious question that the data processors had sustained an injury in fact by virtue of the Comptroller’s action. Rather, the question, which the Court described as one of standing, was whether the data processors should be heard to complain of that injury. The matter was basically one of interpreting congressional intent,{7} and the Court looked to § 10 of the Administrative Procedure Act (APA), 5 U.S.C. § 702, which "grants standing to a person `aggrieved by agency action within the meaning of a relevant statute.’" 397 U.S. at 153. The Court of Appeals had interpreted § 702 as requiring either the showing of a "legal interest," as that term had been narrowly construed in our earlier cases, e.g., Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 137 (1939), or alternatively as requiring an explicit provision in the relevant statute permitting suit by any party "adversely affected or aggrieved."{8} See Association of Data Processing Service Organizations, Inc. v. Camp, 406 F.2d 837 (CA8 1969). This Court was unwilling to take so narrow a view of the APA’s "`generous review provisions,’" 397 U.S. at 156 (quoting Shaughnessy v. Pedreiro, 349 U.S. 48, 51 (1955)), and stated that, in accordance with previous decisions, the Act should be construed "not grudgingly, but as serving a broadly remedial purpose," ibid. (citing Shaughnessy, supra, and Rusk v. Cort, 369 U.S. 367, 379-380 (1962)). Accordingly, the data processors could be "within that class of `aggrieved’ persons who, under § 702, are entitled to judicial review of `agency action,’" 397 U.S. at 157, even though the National Bank Act itself has no reference to aggrieved persons, and, for that matter, no review provision whatsoever.{9} It was thought, however, that Congress, in enacting § 702, had not intended to allow suit by every person suffering injury in fact. What was needed was a gloss on the meaning of § 702. The Court supplied this gloss by adding to the requirement that the complainant be "adversely affected or aggrieved," i.e., injured in fact, the additional requirement that

the interest sought to be protected by the complainant [be] arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.

Id. at 153.

The Court concluded that the data processors were arguably within the zone of interests established by § 4 of the Bank Service Corporation Act of 1962, 76 Stat. 1132, 12 U.S.C. § 1864, which forbids bank service corporations to "engage in any activity other than the performance of bank services for banks." See 397 U.S. at 155. In so holding, the Court relied on a brief excerpt from the legislative history of § 4 indicating that Congress intended to enforce adherence to "the accepted public policy which strictly limits banks to banking." Ibid. (internal quotations omitted).{10} The data processors were therefore permitted to litigate the validity of the Comptroller’s ruling.

The "zone of interest" formula in Data Processing has not proved self-explanatory,{11} but significant guidance can nonetheless be drawn from that opinion. First. The Court interpreted the phrase "a relevant statute" in § 702 broadly; the data processors were alleging violations of 12 U.S.C. § 24 Seventh, see 397 U.S. at 157, n. 2, yet the Court relied on the legislative history of a much later statute, § 4 of the Bank Service Corporation Act of 1962, in holding that the data processors satisfied the "zone of interest" test. Second. The Court approved the "trend . . . toward [the] enlargement of the class of people who may protest administrative action." 397 U.S. at 154. At the same time, the Court implicitly recognized the potential for disruption inherent in allowing every party adversely affected by agency action to seek judicial review. The Court struck the balance in a manner favoring review, but excluding those would-be plaintiffs not even "arguably within the zone of interests to be protected or regulated by the statute. . . ." Id. at 153.{12}

The reach of the "zone of interest" test, insofar as the class of potential plaintiffs is concerned, is demonstrated by the subsequent decision in Investment Company Institute v. Camp, 401 U.S. 617 (1971). There, an association of open-end investment companies and several individual investment companies sought, among other things, review of a Comptroller’s regulation that authorized banks to operate collective investment funds. The companies alleged that the regulation violated the Glass-Steagall Banking Act of 1933, which prohibits banks from underwriting or issuing securities. See 12 U.S.C. § 24 Seventh. The Comptroller urged that the plaintiffs lacked standing, to which the Court responded that plaintiffs not only suffered actual injury but, as in Data Processing, suffered injury from the competition that Congress had arguably legislated against by limiting the activities available to national banks.{13}

Justice Harlan, in dissent, complained that there was no evidence that Congress had intended to benefit the plaintiff’s class when it limited the activities permitted national banks. The Court did not take issue with this observation; it was enough to provide standing that Congress, for its own reasons, primarily its concern for the soundness of the banking system, had forbidden banks to compete with plaintiffs by entering the investment company business.

Our decision in Block v. Community Nutrition Institute, 467 U.S. 340 (1984), provides a useful reference point for understanding the "zone of interest" test. There we held that, while milk handlers have the right to seek judicial review of pricing orders issued by the Secretary of Agriculture under the Agricultural Marketing Agreement Act of 1937, consumers have no such right, because "[a]llowing consumers to sue the Secretary would severely disrupt [the] complex and delicate administrative scheme." Id. at 348. We recognized the presumption in favor of judicial review of agency action, but held that this presumption is "overcome whenever the congressional intent to preclude judicial review is `fairly discernible in the statutory scheme.’" Id. at 351 (quoting Data Processing, 397 U.S. at 157). The essential inquiry is whether Congress "intended for [a particular] class [of plaintiffs] to be relied upon to challenge agency disregard of the law." 467 U.S. at 347 (citing Barlow v. Collins, 397 U.S. 159, 167 (1970)).

The "zone of interest" test is a guide for deciding whether, in view of Congress’ evident intent to make agency action presumptively reviewable, a particular plaintiff should be heard to complain of a particular agency decision. In cases where the plaintiff is not itself the subject of the contested regulatory action, the test denies a right of review if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit. The test is not meant to be especially demanding;{14} in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff. Investment Company Institute v. Camp, 401 U.S. 617 (1971).{15}

The inquiry into reviewability does not end with the "zone of interest" test. In Community Nutrition Institute, the interests of consumers were arguably within the zone of interests meant to be protected by the Act, see 467 U.S. at 347, but the Court found that point not dispositive because, at bottom, the reviewability question turns on congressional intent, and all indicators helpful in discerning that intent must be weighed.{16}

In considering whether the "zone of interest" test provides or denies standing in these cases, we first observe that the Comptroller’s argument focuses too narrowly on 12 U.S.C. § 36, and does not adequately place § 36 in the overall context of the National Bank Act. As Data Processing demonstrates, we are not limited to considering the statute under which respondents sued, but may consider any provision that helps us to understand Congress’ overall purposes in the National Bank Act. See supra at 396.

Section 36 is a limited exception to the otherwise applicable requirement of § 81 that "the general business of each national banking association shall be transacted in the place specified in its organization certificate. . . ." Prior to the enactment of § 36, § 81 had been construed to prevent branching by national banks. Lowry National Bank, 29 Op.Atty.Gen. 81 (1911), approved in First National Bank in St. Louis v. Missouri, 263 U.S. 640, 656-659 (1924). We have described the circumstances surrounding the enactment of § 36 as part of the McFadden Act, and its subsequent modification by the amendments added through the Bank Act of 1933, in First National Bank of Logan v. Walker Bank & Trust Co., 385 U.S. 252 (1966), and we will not repeat that history in detail here. It is significant for our present inquiry that Congress rejected attempts to allow national banks to branch without regard to state law. See id. at 259. There were many expressions of concern about the effects of branching among those who supported the McFadden Act, as well as among its opponents. Allusion was made to the danger that national banks might obtain monopoly control over credit and money if permitted to branch. 66 Cong.Rec. 4438 (1925) (remarks of Sen. Reed). The sponsor of the Act himself stated that "[t]his bill is much more an anti-branch-banking bill than a branch-banking bill." Id. at 1582 (remarks of Rep. McFadden).{17} In short, Congress was concerned not only with equalizing the status of state and federal banks, but also with preventing the perceived dangers of unlimited branching.

The interest respondent asserts has a plausible relationship to the policies underlying §§ 36 and 81 of the National Bank Act. Congress has shown a concern to keep national banks from gaining a monopoly control over credit and money through unlimited branching. Respondent’s members compete with banks in providing discount brokerage services -- activities which give banks access to more money, in the form of credit balances, and enhanced opportunities to lend money, viz., for margin purchases. "Congress [has] arguably legislated against the competition that [respondent seeks] to challenge," Investment Company Institute, 401 U.S. at 620, by limiting the extent to which banks can engage in the discount brokerage business, and hence limiting the competitive impact on nonbank discount brokerage houses.

These cases can be analogized to Data Processing and Investment Company Institute. In those cases the question was what activities banks could engage in at all; here, the question is what activities banks can engage in without regard to the limitations imposed by state branching law. In both cases, competitors who allege an injury that implicates the policies of the National Bank Act are very reasonable candidates to seek review of the Comptroller’s rulings. There is sound reason to infer that Congress "intended [petitioner’s] class [of plaintiffs] to be relied upon to challenge agency disregard of the law." Community Nutrition Institute, 467 U.S. at 347. And we see no indications of the kind presented in Community Nutrition Institute that make "fairly discernible" a congressional intent to preclude review at respondent’s behest. We conclude, therefore, that respondent was a proper party to bring this lawsuit, and we now turn to the merits.

III

It is settled that courts should give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with the enforcement of that statute. The Comptroller of the Currency is charged with enforcement of banking laws to an extent that warrants the invocation of this principle with respect to his deliberative conclusions as to the meaning of these laws. See First National Bank v. Missouri, 263 U.S. 640, 658.

Investment Company Institute v. Camp, supra, at 626-627. See also, e.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U.S. 116 (1985); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Respondent contends that the Comptroller’s interpretation of the Bank Act is not entitled to deference, because it contradicts the plain language of the statute. Respondent relies on 12 U.S.C. § 81, which provides:

The general business of each national banking association shall be transacted in the place specified in its organization certificate and in the branch or branches, if any, established or maintained by it in accordance with the provisions of section 36 of this title.

In respondent’s view, the unambiguous meaning of § 81 is that "national banks may locate their business only at their headquarters or licensed branches within the same state." Brief for Respondent 11. However, § 81 is considerably more ambiguous than respondent allows. The phrase "[t]he general business of each national banking association" in § 81 need not be read to encompass all the business in which the bank engages, but, as we shall explain, can plausibly be read to cover only those activities that are part of the bank’s core banking functions.

Prior to 1927, the predecessor of § 81 (Rev. Stat. § 5190) provided that

the usual business of each national banking association shall be transacted at an office or banking-house located in the place specified in its organization certificate.

In Lowry National Bank, 29 Op.Atty.Gen. 81 (1911), the Attorney General interpreted this statute to permit

a bank [to] maintain an [extra-office] agency, the power of which is restricted to dealing in bills of exchange, or possibly to some other particular class of business incident to the banking business,

but to forbid "a bank to establish a branch for the transaction of a general banking business." Id. at 86. The Attorney General went on to cite cases which he viewed as

recogniz[ing] a vital distinction between a mere agency for the transaction of a particular business and a branch bank wherein is carried on a general banking business.

Id. at 87. He summarized the distinction as follows:

An agency requires no division of the capital stock, and the details of the business are few and are easily supervised by the officers of the bank, while a branch bank requires, in effect, a division of the capital, the working force is organized, and the business conducted as if it were a separate organization, and it competes in all branches of the banking business with other banks in that locality the same as if it were an independent institution.

Id. at 87-88. The Court subsequently approved this interpretation of § 5190 in First National Bank in St. Louis v. Missouri, 263 U.S. at 658.

The Lowry National Bank opinion, which is part of the background against which Congress legislated when it passed the McFadden Act in 1927, does not interpret § 5190 as requiring national banks to conduct all of their business at the central office. The opinion equates "the usual business of banking" with "a general banking business," and envisions branching in terms of the performance of core banking functions.

Respondent attempts to sidestep the Lowry opinion by arguing that Congress changed the meaning of § 5190 when, in passing the McFadden Act, it changed the words "the usual business of each national banking association" to "the general business of each national banking association." Respondent has pointed to nothing in the legislative history of the McFadden Act, however, indicating that this change in the wording had substantive significance. We find reasonable the Comptroller’s position that "the amendment simply codified the accepted notion that the `usual business’ of a bank was the `general banking business.’" Reply Brief for Federal Petitioner 5, n. 5.

Respondent’s fallback position from its "plain language" argument is that the phrase "general business" in § 81 at least refers to all activities in which Congress has specifically authorized a national bank to engage, including the trading in securities that the McFadden Act authorized by the amendment of 12 U.S.C. § 24 Seventh. See McFadden Act, ch. 191, § 2, 44 Stat. 1226. However, petitioner Security Pacific has provided a counter-example to this general thesis: In § 2(b) of the McFadden Act, Congress specifically authorized national banks’ involvement in the safe-deposit business, and in doing so deleted language from the bill that arguably would have limited the bank’s authority "to conduct a safe deposit business" to activities "located on or adjacent to the premises of such association." 67 Cong.Rec. 3231 (1926). In floor debates, Representative McFadden, in response to the question from Representative Celler whether the bill, as amended, would permit "a safe-deposit business [to be] conducted a block away or a mile away from a national banking association," replied that the deletion of the language regarding location "removes the limitations which might be very embarrassing to an institution." Id. at 3232.{18} In view of this exchange, we are not persuaded that Congress intended the locational restriction of § 81 and § 36 to reach all activities in which national banks are specifically authorized to engage.

Respondent also relies on the following statement, which Representative McFadden placed in the Congressional Record 10 days after the passage of the McFadden Act, while Congress was in recess:

[Section 36(f)] defines the term "branch." Any place outside of or away from the main office where the bank carries on its business of receiving deposits, paying checks, lending money, or transacting any business carried on at the main office, is a branch if it is legally established under the provisions of this act.

68 Cong.Rec. 5816 (1927). We do not attach substantial weight to this statement, which Congress did not have before it in passing the McFadden Act. As the Comptroller persuasively argues, Representative McFadden cannot be considered an impartial interpreter of the bill that bears his name, since he was not favorably disposed toward branch banking.{19} If we took literally Representative McFadden’s view of § 36(f), we would have to conclude that Congress intended to overturn the Attorney General’s opinion in Lowry National Bank, 29 Op.Atty.Gen. 81 (1911), which this Court had previously approved in First National Bank in St. Louis v. Missouri, supra, at 658. Congress never specifically indicated such an intention, and we find it hard to imagine that it would have made such a change without comment.

It is significant that, in passing the McFadden Act, Congress recognized and for the first time specifically authorized the practice of national banks’ engaging in the buying and selling of investment securities. See Act of Feb. 25, 1927, ch. 191, § 2, 44 Stat. 1226.{20} Prior to 1927, banks had conducted such securities transactions on a widespread and often interstate basis, without regard to the locational restriction imposed by § 5190 on "the usual business of each national banking association." See, e.g., W. Peach, The Security Affiliates of National Banks 74 (1941); Perkins, The Divorce of Commercial and Investment Banking: A History, 88 Banking L.J. 483, 492, 494, n. 26 (1971).{21} We find it unlikely that Congress, in recognizing and explicitly authorizing this practice, would have undertaken to limit its geographic scope through the branching law without specifically noting the restriction on the prior practice.{22}

For the foregoing reasons, we conclude that Congress did not intend to subject a bank’s conduct of a securities business to the branching restrictions imposed by 12 U.S.C. § 36(f). We do not view our decision today as inconsistent with our prior decisions interpreting 12 U.S.C. § 36(f) as embodying a policy of "competitive equality" between state and national banks. See, e.g., First National Bank in Plant City v. Dickinson, 396 U.S. 122 (1969). The Comptroller reasonably interprets the statute as requiring "competitive equality" only in core banking functions, and not in all incidental services in which national banks are authorized to engage.{23} We are not faced today with the need to decide whether there are core banking functions beyond those explicitly enumerated in § 36(f); it suffices, to decide this case, to hold that the operation of a discount brokerage service is not a core banking function.

Accordingly, the judgment of the Court of Appeals is affirmed insofar as it held that respondent has standing, and reversed on the merits.

It is so ordered.

JUSTICE SCALIA took no part in the consideration or decision of these cases.

1. Discount brokers execute trades on behalf of their customers, but do not offer investment advice. As a result, the commissions they charge are substantially lower than those charged by full-service brokers. See Securities Industries Assn. v. Board of Governors, FRS, 468 U.S. 207, 209, n. 2 (1984).

2. The Comptroller relied primarily on the fact that banks publicly solicit deposits and use deposited funds in lending, while credit balances maintained by brokers are not, as such, directly solicited from the public, and are subject to regulatory restrictions regarding use by brokers. See the Securities Investor Protection Act, 16 U.S.C. § 78aaa et seq. (restricting advertising, promotional, and selling practices of brokers regarding interest-bearing free credit balances); 17 CFR § 240.15c3-2 (1986) (regulating the use of credit balances by brokers).

Although the Comptroller believed that § 36(f) should be read narrowly to define "branch" only with reference to receiving deposits, making loans, and cashing checks, he recognized that there is authority supporting a broader reading. In St. Louis County National Bank v. Mercantile Trust Company National Assn., 548 F.2d 716 (CA8 1976), cert. denied, 433 U.S. 909 (1977), a trust office operated by a national bank was held to be a branch. While disagreeing with this holding, the Comptroller took the position that it "should at the very least be limited to those dealings with the public requiring a specialized banking or similar license." App. D to Pet. for Cert. in No. 85-971, pp. 43a-44a.

3. A month later, the Comptroller approved without comment the application of Union Planters to acquire an existing brokerage firm. App. E to Pet. for Cert. in No. 85-971, p. 47a.

4. Respondent also contended that national banks are entirely prohibited from offering discount brokerage services by the Glass-Steagall Act, 12 U.S.C. § 24 (1982 ed. and Supp. 1II); 12 U.S.C. §§ 78, 377, 378. This contention was rejected by the District Court, a holding that is not before us.

5. The Comptroller also argued unsuccessfully that respondent could show no injury, and thus had not presented the court with a "case or controversy" within the meaning of Article III. The Comptroller has since abandoned this argument.

6. The dissenting judge argued that there was no standing, as he did in dissenting, with two other judges, from the denial of en banc rehearing. In his view, the purpose of the McFadden Act is to establish competitive equality between national and state banks as regards branching, and, while

state banks (and state banking commissions) are obviously within the zone of interests protected by the statute, . . . the brokerage houses suing in the present case are no more within it than are businesses competing for the parking spaces that an unlawful branch may occupy.

247 U.S.App.D.C. at 43, 765 F.2d at 1197. The dissenter also argued that the indefinite language of § 36(f) "presents precisely the situation in which our deference to the agency should be at its height" id. at 44, 765 F.2d at 1198, and concluded that the Comptroller’s construction of the statute "cannot by any means be considered unreasonable," and therefore should be affirmed if respondent is held to have standing. Ibid.

7. "Congress can, of course, resolve the question [of standing] one way or another, save as the requirements of Article III dictate otherwise." 397 U.S. at 164.

8. Section 402(b) of the Communications Act of 1934, as amended, 47 U.S.C. § 402(b), is an example of a statute granting an explicit right of review to all persons adversely affected or aggrieved by particular agency actions (there, licensing actions by the Federal Communications Commission). See generally FCC v. Sanders Bros. Radio Station, 309 U.S. 470 (1940).

9. We have most recently reaffirmed this liberal reading of the review provisions of the APA in Japan Whaling Assn. v. American Cetacean Society, 478 U.S. 221 (1986). There, the Cetacean Society sought judicial review of the Secretary of Commerce’s refusal to carry out his alleged duty, under the Pelly Amendment to the Fishermen’s Protective Act of 1967, to certify Japan for taking actions that diminished the effectiveness of the International Convention for the Regulation of Whaling. The Secretary contended, among other things, that the Cetacean Society had no private cause of action under the Pelly Amendment. We rejected this argument, holding that respondents had a right of action

expressly created by the Administrative Procedure Act (APA), which states that "final agency action for which there is no other adequate remedy in a court [is] subject to judicial review," § 704, at the behest of "[a] person . . . adversely affected or aggrieved by agency action."

Id. at 231, n. 4. We held further, with citations to such previous decisions as Block v. Community Nutrition Institute, 467 U.S. 340 (1984), that

[a] separate indication of congressional intent to make agency action reviewable under the APA is not necessary; instead, the rule is that the cause of action for review of such action is available, absent some clear and convincing evidence of legislative intention to preclude review.

Japan Whaling, supra, at 231, n. 4.

10. Subsequently, in Arnold Tours, Inc. v. Camp, 400 U.S. 45 (1970), the Court held that, under the rationale of Data Processing, travel agents have standing to challenge the Comptroller’s decision to allow banks, pursuant to their incidental powers under 12 U.S.C. § 24 Seventh, to provide travel services to their customers. The Court found it of no moment that Congress never specifically focused on the interests of travel agents in enacting § 4 of the Bank Service Corporation Act. 400 U.S. at 46, and n. 3.

11. The zone test has also been the subject of considerable scholarly writing, much of it critical. See, e.g., 4 K. Davis, Administrative Law Treatise § 24:17 (2d ed. 1983); Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1731-1734 (1975); Albert, Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief, 83 Yale L.J. 425 (1974); Scott, Standing in the Supreme Court -- A Functional Analysis, 86 Harv.L.Rev. 645 (1973); Jaffe, Standing Again, 84 Harv.L.Rev. 633, 634, and n. 9 (1971).

12. The Court’s concern was to ensure that the data processors’ association would be "a reliable private attorney general to litigate the issues of the public interest in the present case." 397 U.S. at 154. The language quoted is directed most immediately to the inquiry whether sufficient concrete adversity existed in the case to satisfy Article III. However, the concern that the plaintiff be "reliable" carries over to the "zone of interest" inquiry, which seeks to exclude those plaintiffs whose suits are more likely to frustrate than to further statutory objectives.

13. The Court stated:

This contention [that plaintiffs lack standing] is foreclosed by Data Processing Service v. Camp, 397 U.S. 150. There we held that companies that offered data processing services to the general business community had standing to seek judicial review of a ruling by the Comptroller that national banks could make data processing services available to other banks and to bank customers. We held that data processing companies were sufficiently injured by the competition that the Comptroller had authorized to create a case or controversy. The injury to the petitioners in the instant case is indistinguishable. We also concluded that Congress did not intend "to preclude judicial review of administrative rulings by the Comptroller as to the legitimate scope of activities available to national banks under [the National Bank Act]." 397 U.S. at 167. This is precisely the review that the petitioners have sought in this case. Finally, we concluded that Congress had arguably legislated against the competition that the petitioners sought to challenge, and from which flowed their injury. We noted that, whether Congress had indeed prohibited such competition was a question for the merits. In the discussion that follows in the balance of this opinion, we deal with the merits of petitioners’ contentions, and conclude that Congress did legislate against the competition that the petitioners challenge. There can be no real question, therefore, of the petitioners’ standing in the light of the Data Processing case. See also Arnold Tours v. Camp, 400 U.S. 45.

401 U.S. at 620-621. In the discussion of the merits that followed, the Court interpreted the Glass-Steagall Act as reflecting

a [congressional] determination that policies of competition, convenience, or expertise which might otherwise support the entry of commercial banks into the investment banking business were outweighed by the "hazards" and "financial dangers" that arise when commercial banks engage in the activities proscribed by the Act.

Id. at 630 (footnote omitted). The Court described these "hazards" primarily in terms of the danger to banks of making imprudent investments or risky loans, as well as the dangers of possible loss of public confidence in banks and the danger to the economy as a whole of speculation fueled by bank loans for investment purposes. Id. at 629-634.

14. Thus, in Data Processing, the Court found it sufficient to establish reviewability that the general policy implicit in the National Bank Act and the Bank Service Corporation Act was "apparent," and that "those whose interests are directly affected by a broad or narrow interpretation of the Acts are easily identifiable." 397 U.S. at 157.

15. Insofar as lower court decisions suggest otherwise, see, e.g., Control Data Corp. v. Baldrige, 210 U.S.App.D.C. 170, 180-181, 655 F.2d 283, 293-294, cert. denied, 454 U.S. 881 (1981), they are inconsistent with our understanding of the "zone of interest" test, as now formulated.

16. The principal cases in which the "zone of interest" test has been applied are those involving claims under the APA, and the test is most usefully understood as a gloss on the meaning of § 702. While inquiries into reviewability or prudential standing in other contexts may bear some resemblance to a "zone of interest" inquiry under the APA, it is not a test of universal application. Data Processing speaks of claims "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." 397 U.S. at 153 (emphasis added). We doubt, however, that it is possible to formulate a single inquiry that governs all statutory and constitutional claims. As the Court commented in Data Processing: "Generalizations about standing to sue are largely worthless as such." Id. at 151. We have occasionally listed the "zone of interest" inquiry among general prudential considerations bearing on standing, see, e.g., Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 475 (1982), and have on one occasion conducted a "zone of interest" inquiry in a case brought under the Commerce Clause, see Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 320-321, n. 3 (1977). While the decision that there was standing in Boston Stock Exchange was undoubtedly correct, the invocation of the "zone of interest" test there should not be taken to mean that the standing inquiry under whatever constitutional or statutory provision a plaintiff asserts is the same as it would be if the "generous review provisions" of the APA apply, Data Processing, 397 U.S. at 156.

The difference made by the APA can be readily seen by comparing the "zone of interest" decisions discussed supra, at 394-398, with cases in which a private right of action under a statute is asserted in conditions that make the APA inapplicable. See, e.g., Cort v. Ash, 422 U.S. 66 (1975); Cannon v. University of Chicago, 441 U.S. 677 (1979). In Cort, corporate shareholders sought recovery of funds that a corporate official had expended in alleged violation of 18 U.S.C. § 610, the then-current version of the Corrupt Practices Act, which prohibits corporate expenditures and contributions for the purpose of influencing federal candidate elections. The Court gave the would-be plaintiffs the threshold burden of showing that they were "one of the class for whose especial benefit the statute was enacted," 422 U.S. at 78 (internal quotation omitted; emphasis in original). The shareholders argued that § 610 was motivated in part by Congress’ conviction that corporate officials have no moral right to use corporate assets for political purposes. The Court, in holding that this was not enough to give the shareholders an implied right of action under § 610, observed that "the protection of ordinary stockholders was, at best, a secondary concern [underlying § 610]." Id. at 81. Clearly, the Court was requiring more from the would-be plaintiffs in Cort than a showing that their interests were arguably within the zone protected or regulated by § 610.

17. Representative McFadden explained:

[The Act] prohibits national banks from engaging in state-wide branch banking in any State (secs. 7 and 8); it prohibits a national bank from engaging in county-wide branching in any state (secs. 7 and 8); it prohibits national and State member banks [of the Federal Reserve System] from establishing any branches in cities of less than 25,000 population (secs. 8 and 9); it prohibits national banks from having any branches in any city located in a State which prohibits branch banking (sec. 8); it prohibits a national bank after consolidating with a State bank to continue in operation any branches which the State bank may have established outside of city limits (sec. l); it prohibits a State bank, upon converting into a national bank, to retain in operation any branches which may have been established outside of city limits (sec. 7).

66 Cong.Rec. 1582 (1925). See also, e.g., id. at 1569 (remarks of Rep. Nelson); id. at 1624-1625 (remarks of Rep. Goldsborough); id. at 1633 (remarks of Rep. Williams); id. at 1637 (remarks of Rep. Hull).

Congress subsequently relaxed some of the restrictions on branching to which Representative McFadden alluded in the passage quoted above. For example, state-wide branching by national banks is now permitted if state law explicitly permits state-wide branching by state banks. 12 U.S.C. § 36(c)(2). However, such modifications obviously do not represent an abandonment by Congress of the policy against unlimited branching.

18. Representative Wingo then remarked that the locational language that was deleted was to make clear that the limitations on the total amount a bank can invest in the safe deposit business applies irrespective of whether the business is conducted on or off the bank’s premises. 67 Cong.Rec. 3232 (1926).

19. See Brief for Federal Petitioner 33-34, n. 23. See also n. 16, supra, and accompanying text.

20. The legislation authorized national banks to engage in "the business of buying and selling investment securities." Banks were limited to buying and selling the securities "without recourse," and were prohibited from acquiring the securities of any one issuer in an amount that exceeded 25% of the bank’s capital stock. § 2, 44 Stat. 1226.

21. Respondent treats these prior practices as "immaterial to the issue here" because, in the 1920’s, national banks generally carried out such transactions through affiliates, rather than directly owned subsidiaries. Brief for Respondent 16. However, it appears doubtful that such securities affiliates were functionally distinguishable from subsidiaries. Various devices were used to achieve identity of stock ownership between the affiliate and the bank, see W. Peach, The Security Affiliates of National Banks 66-68 (1941), and as a Senate Subcommittee later commented, "it goes without saying that, through identity of stock ownership, there is identity of real control." Operation of the National and Federal Reserve Banking Systems: Hearings Pursuant to S.Res. 71 before a Subcommittee of the Senate Committee on Banking and Currency, 71st Cong., 3d Sess., 1052, 1057 (1931). Moreover, at the time it passed the McFadden Act, Congress did not appear to place any particular weight on the affiliate-subsidiary distinction; thus, the legislative history contains references to securities trading as "a type of business which national banks are now conducting under their incidental charter powers." S.Rep. No. 473, 69th Cong., 1st Sess., 7 (1926); H.R.Rep. No. 83, 69th Cong., 1st Sess., 3 (1926).

22. Congress did, of course, later restrict the types of securities transactions in which national banks could engage through passage of the Glass-Steagall Act in 1933. See 12 U.S.C. § 24 (1982 ed. and Supp. III); 12 U.S.C. §§ 78, 377, 378. However, Congress showed no intention of placing geographic restrictions on the location of those securities transactions in which banks could still engage. Rather, Congress emphasized that the Glass-Steagall Act permitted banks "to purchase and sell investment securities for their customers to the same extent as heretofore." S.Rep. No. 77, 73d Cong., 1st Sess., 16 (1933).

23. If the "competitive equality" principle were carried to its logical extreme, the ability of a national bank to carry on an incidental activity such as the safe deposit business would be limited to the same extent as a state bank’s ability to do so under state law. However, as we have noted, supra at 406, the legislative history of the McFadden Act rather clearly indicates that Congress intended national banks to be able to carry on a safe deposit business without locational restrictions.